TaxTMI 
TaxTMI 
TaxTMI 
2014 (9) TMI 1146
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....fence both under the Indian Penal Code (in short, 'Indian Penal Code') and under the provisions of Mines and Minerals (Development and Regulation) Act. 2. Criminal Appeal No. 499 of 2011 arose out of an order passed by the Delhi High Court on an application Under Section 482 Code of Criminal Procedure seeking quashing of the FIR registered at Police Station Alipur Under Sections 379/114/120B/34 Indian Penal Code on the allegation that Appellant was involved in illegal mining of sand from the Yamuna basin. An FIR was registered by the police suo motu having come to know that some persons were removing and selling sand from the Yamuna basin for the last so many days. On receipt of such information, the police officers committed raid and visited the site where they found one dumper filled with sand. Because of non-production of any documents and valid papers, the digging equipments were seized and taken into possession and persons were arrested. An FIR was registered on the charges of illegal mining Under Section 379/114 Indian Penal Code besides being cognizable offence Under Section 21(4) of the Mines and Mineral (Development and Regulation) Act, 1957 (in short the MMDR Act....
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....ase; (2) Whether a cognizance can be taken by the concerned Magistrate on the basis of police report; and (3) Whether a case of theft was made out for permitting registration of an FIR Under Section 379/411 of the Indian Penal Code. The High Court after referring various provisions on the MMDR Act vis-à-vis Code of Criminal Procedure disposed of the application directing the Respondent to amend the FIR, which was registered, by converting the offence mentioned therein Under Section 379/411/120B/34 of Indian Penal Code to Section 21 of the MMDR Act. The High Court in para 18 of the impugned order held as under: 18. In view of the aforesaid and taking into consideration the provisions contained Under Section 21(6) of the said Act I hold that: (i) The offence under the said Act being cognizable offence, the Police could have registered an FIR in this case; (ii) However, so far as taking cognizance of offence under the said Act is concerned, it can be taken by the Magistrate only on the basis of a complaint filed by an authorized officer, which may be filed along with the police report; (iii) Since the offence of mining of sand without permission is punishable Under....
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....nces punishable under the Indian Penal Code, no such bar as indicated in para (2) would apply. xxx 22. In so far as the petitions where only FIRs have been registered by the police and no charge sheet is filed, they must fail. In so far as the cases where police investigation has been concluded and charge sheets have been filed, it would not be open for the Magistrate concerned to take cognizance of offences only on such police reports. 11. In the case of Sengol, Charles and K. Kannan, etc. etc. v. State Rep. by Inspector of Police 2012 Cri. LJ 1705 : 2012 (2) CTC 369, a similar question also came for consideration before the Madras High Court where a batch of writ petitions were heard and disposed of. The allegation made against the writ Petitioner in the FIR was that they committed theft of sand from rivers and river-bed belonging to the Government, which act also constitutes violation of the provisions of MMDR Act. Accordingly, they were prosecuted for the offence punishable Under Section 21 of the MMDR Act and also Under Section 379 Indian Penal Code. The question that came for consideration before the Court was as to whether the provisions of the Mines and Minerals (Devel....
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....is not permissible under the law. This is the admitted position that the complainant who lodged the complaint is not an authorized person to make such complaint. So taking cognizance on the basis of the complaint by the learned Magistrate for violation of the provision Under Section 21(2) of the Mines and Minerals (Regulation and Development) Act, 1957 is bad. The only question that is left open is whether taking cognizance itself is bad or a partial cognizance can be taken? In the peculiarity of the facts and circumstances of the case if the offence as alleged Under Section 379 Indian Penal Code against the accused is dissociated from the allegation of excavation of earth without license constituting an offence Under Section 21(2) of the Mines and Minerals (Regulation and Development) Act, 1957, then there is no ingredient for an offence Under Section 379 Indian Penal Code against the accused. Even if it is assumed that there is such an ingredient then the order of taking cognizance is bad because cognizance is one and it cannot be made a split. If it is found that taking cognizance of an offence is bad the other part of the offence for which cognizance has been taken cannot be su....
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....ed Counsel submitted that this power of the police is equivalent to the same power/duty which arises pursuant to an order of the Magistrate Under Section 156[3]. There would definitely be cases where offences punishable Under Section 20 were brought to the notice of persons who were neither authorized person under the Act nor the police. Therefore in such a situation, if the police fails to act, the other option available to any person is to make an application Under Section 156 [3]. However, in this case, the learned Magistrate has no jurisdiction to pass an order under this provision in view of paragraph 11. Therefore, it will be a completely incongruous situation if the provisions of Sub-clause 6 of Section 21 are to be extended to Chapter 12 despite which several provisions in Chapter 12 cannot be invoked. 17. Learned Counsel further submitted that the provisions of Chapter 12 to 14 leading up to the magistrate taking cognizance of an offence are a part of a common statutory duty. The investigation Under Section 156 of the Code has to necessarily result in a report either Under Section 170 or 173 of the Code. The Appellant submits that the magistrate is duty bound to act on su....
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....ent. Provided further that nothing in this Sub-section shall apply to any prospecting operations undertaken by the Geological Survey of India, the Indian Bureau of Mines, the Atomic Minerals Directorate for Exploration and Research of the Department of Atomic Energy of the Central Government, the Directorates of Mining and Geology of any State Government (by whatever name called), and the Mineral Exploration Corporation Limited, a Government Company within the meaning of Section 617 of the Companies Act, 1956. Provided also that nothing in this Sub-section shall apply to any mining lease (whether called mining lease, mining concession or by any other name) in force immediately before the commencement of this Act in the Union Territory of Goa, Daman and Diu. (1A) No person shall transport or store or cause to be transported or stored any mineral otherwise than in accordance with the provisions of this Act and the rules made thereunder. (2) No reconnaissance permit, prospecting licence or mining lease shall be granted otherwise than in accordance with the provisions of this Act and the rules made thereunder. (3) Any State Government may, after prior consultation with the Ce....
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....th the directions of such court. (5) Whenever any person raises, without any lawful authority, any mineral from any land, the State Government may recover from such person the mineral so raised, or, where such mineral has already been disposed of, the price thereof, and may also recover from such person, rent, royalty or tax, as the case may be, for the period during which the land was occupied by such person without any lawful authority. (6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence Under Sub-section (1) shall be cognizable. 20. Section 21 is a penalty provision in case of contravention of Section 4(1A) of the Act and is punishable with imprisonment for a term which may extend to two years. Sub-Section 3 of Section 21 would show that the State Government or any other authority authorized by the State Government may obtain the help of police to evict the trespassers from the land who is doing mining activity in contravention of the provisions of the Act. Sub-Section 4 further empowered the officer or an authority specially empowered in this behalf to seize any tool, equipment, vehicle or any other thing which are used by any person ....
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....ions to search, seizure and confiscation of the property in the manner provided under the Act as and when a person violates the provisions of the Act and the Rules made thereunder in doing mining activities. 24. Looking into the provisions the Code of Criminal Procedure, 1973 the relevant provisions need to be referred hereunder. Section 2(c), 2(d) and 2(h) define cognizable offence, complaint and investigation which reads as under: 2(c) "cognizable offence" means an offence for which, and "cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant; 2(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. 2(h) "investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf; 25. Section 4 provides that all offences under the Indian Pen....
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....g such arrest, his reasons in writing. ... 26. Chapter 11 of the Code confers very important power and duty upon the police officer to take preventive action in certain cases. Sections 149, 150, 151 and 152 of the Code are worth to be referred to and quoted hereinbelow: 149. Police to prevent cognizable offences-Every police officer may interpose for the purpose of preventing, and shall, to the best of his ability, prevent, the commission of any cognizable offence. 150. Information of design to commit cognizable offences-Every police officer receiving information of a design to commit any cognizable offence shall communicate such information to the police officer to whom he is subordinate, and to any other officer whose duty it is to prevent or take cognizance of the commission of any such offence. 151. Arrest to prevent the commission of cognizable offences-(1) A police officer, knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented. (2) No person arrested Under Sub-section (1) shall be ....
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....ity. However, lowering the water table is most threatening to water supply exacerbating drought occurrence and severity as tributaries of major rivers dry up when sand mining reaches certain thresholds. 31. Illegal sand mining also causes erosion. Damming and mining have reduced sediment delivery from rivers to many coastal areas, leading to accelerated beach erosion. 32. The report also dealt with the astonishing impact of sand mining on the economy. It states that the tourism may be affected through beach erosion. Fishing, both traditional and commercial--can be affected through destruction of benthic fauna. Agriculture could be affected through loss of agricultural land from river erosion and the lowering of the water table. The insurance sector is affected through exacerbation of the impact of extreme events such as floods, droughts and storm surges through decreased protection of beach fronts. The erosion of coastal areas and beaches affects houses and infrastructure. A decrease in bed load or channel shortening can cause downstream erosion including bank erosion and the undercutting or undermining of engineering structures such as bridges, side protection walls and structur....
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....bank erosion. Depletion of sand in the stream-bed and along coastal areas causes the deepening of rivers and estuaries and enlargement of river mouths and coastal inlets. It also leads to saline-water intrusion from the nearby sea. The effect of mining is compounded by the effect of sea level rise. Any volume of sand exported from stream-beds and coastal areas is a loss to the system. Excessive in-stream sand mining is a threat to bridges, river banks and nearby structures. Sand mining also affects the adjoining groundwater system and the uses that local people make of the river. Further, according to researches, in-stream sand mining results in the destruction of aquatic and riparian habitat through wholesale changes in the channel morphology. The ill effects include bed degradation, bed coarsening, lowered water tables near the stream-bed, and channel instability. These physical impacts cause degradation of riparian and aquatic biota and may lead to the undermining of bridges and other structures. Continued extraction of sand from river beds may also cause the entire stream-bed to degrade to the depth of excavation. 22. The most important effects of in-stream sand mining on aqu....
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....the doctrine of public trust which extend to natural resources observed as under: 24. The ancient Roman Empire developed a legal theory known as the "Doctrine of the Public Trust". It was founded on the ideas that certain common properties such as rivers, seashore, forests and the air were held by Government in trusteeship for the free and unimpeded use of the general public. Our contemporary concern about "the environment" bear a very close conceptual relationship to this legal doctrine. Under the Roman law these resources were either owned by no one (res nullious) or by every one in common (res communious). Under the English common law, however, the Sovereign could own these resources but the ownership was limited in nature, the Crown could not grant these properties to private owners if the effect was to interfere with the public interests in navigation or fishing. Resources that were suitable for these uses were deemed to be held in trust by the Crown for the benefit of the public. Joseph L. Sax, Professor of Law, University of Michigan-proponent of the Modern Public Trust Doctrine-in an erudite article "Public Trust Doctrine in Natural Resource Law: Effective Judicial Interv....
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....trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the seashore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership. 38. In the case of Intellectuals Forum v. State of A.P. (2006) 3 SCC 549, this Court while balancing the conservation of natural resources vis-à-vis urban development observed as under: 67. The responsibility of the State to protect the environment is now a well-accepted notion in all countries. It is this notion that, in international law, gave rise to the principle of "State responsibility" for pollution emanating within one's own territories (Corfu Channel case). This responsibility is clearly enunciated in the United Nations Conference on the Human Environment, Stockholm 1972 (Stockholm Convention), to which India was a party. The relevant clause of this declaration in the present context is para 2, which states: The natural resources of the earth, including the air, water, land, flora and fauna and especi....
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....ave enormously increased by the First and Second World War conditions. Corruption, at the initial stages, was considered confined to the bureaucracy which had the opportunities to deal with a variety of State largesse in the form of contracts, licences and grants. Even after the war the opportunities for corruption continued as large amounts of government surplus stores were required to be disposed of by the public servants. As a consequence of the wars the shortage of various goods necessitated the imposition of controls and extensive schemes of post-war reconstruction involving the disbursement of huge sums of money which lay in the control of the public servants giving them a wide discretion with the result of luring them to the glittering shine of wealth and property. In order to consolidate and amend the laws relating to prevention of corruption and matters connected thereto, the Prevention of Corruption Act, 1947 was enacted which was amended from time to time. In the year 1988 a new Act on the subject being Act 49 of 1988 was enacted with the object of dealing with the circumstances, contingencies and shortcomings which were noticed in the working and implementation of the 1....
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....ror, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, unless such error, omission or irregularity, has in fact occasioned a failure of justice.' if, therefore, cognizance is in fact taken, on a police report to investigation, there can be no doubt that the relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the court for trial is well settled as appears from the cases in-' Parbhu v. Emperor AIR 1944 PC 73, and-'Lumbhardar Zutshi v. R. AIR 1950 PC 26. It further held: In our opinion, therefore, when such a breach is brought to the notice of the court at an early stage of the trial, the court will have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for, wholly or partly, ....
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....ome purposeless and meaningless and to say that the courts even in the event of refusal of bail have no choice but to set the person arrested at liberty by folding their hands as a helpless spectator in the face of what is termed as "legislative casus omissus" or legal flaw or lacuna, it will become utterly illogical and absurd. 42. In the case of Maqbool Hussain v. State of Bombay AIR 1953 SC 325 , the question that fell for consideration before the Constitution Bench of this Court was whether by reason of the proceedings taken by the Sea Customs authorities the Appellant could be said to have been prosecuted and punished for the same offence with which he was charged in the court of the Chief Presidency Magistrate, Bombay. In the said case, gold had been brought by the Appellant from Jeddah in contravention of the provisions of Foreign Exchange Regulation Act, 1947. He was also liable to be prosecuted under the Sea Customs Act. The prosecution was challenged as being violative of Article 20(2) of the Constitution. The Constitution Bench answering the question held as under: ...There is no doubt that the act which constitutes an offence under the Sea Customs Act as also an offe....
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....cal. If, however, the two offences are distinct, then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked. It is, therefore, necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out. It would be seen from a comparison of Section 105 of the Insurance Act and Section 405 of Indian Penal Code (Section 409 of the Indian Penal Code being only an aggravated form of the same offence) that though some of the necessary ingredients are common they differ in the following: (1) Whereas Under Section 405 of the Indian Penal Code the accused must be "entrusted" with property or with "dominion over that property", Under Section 105 of the Insurance Act the entrustment or dominion over property is unnecessary; it is sufficient if the manager, director, etc. "obtains possession" of the property. (2) The offence of criminal breach of trust (Section 405 of the Indian Penal Code) is not committed unless the act of misappropriation or conversion or "the disposition in violation of the law or contract", is done w....
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....s a tax-collector under a municipality and was prosecuted for offences among others Under Section 409 of the Indian Penal Code and Section 5(2) of the Prevention of Corruption Act for misappropriation of sums entrusted to him as such tax-collector. By virtue of the provision contained in Section 7 of the Criminal Law Amendment Act, XLVI of 1952, the case was transferred to a Special Judge who was appointed by the State Government after the prosecution was commenced before a Magistrate. The Special Judge found the accused guilty of the offence Under Section 409 of the Indian Penal Code and convicted him to three years' rigorous imprisonment but as regards the charge Under Section 5(2) of the Prevention of Corruption Act, he acquitted the accused on the ground of certain procedural non-compliance with the rules as to investigation prescribed by the latter enactment. The Respondent appealed to the High Court against this conviction and sentence Under Section 409 of the Indian Penal Code and there urged that by reason of his acquittal in respect of the offence Under Section 5(2) of the Prevention of Corruption Act, his conviction Under Section 409 of the Indian Penal Code could not....
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.... the argument of the Appellant on this aspect, of the case. 7. It was then contended on behalf of the Appellant that the prosecution is illegal as complaint petition was required to be riled by the Inspecting Assistant Commissioner under the 1922 Act. In our opinion, there is no substance in this argument, Section 53 of the 1922 Act only requires that a person shall not be proceeded against for an offence Under Section 51 or Section 52 of the 1922 Act "except at the instance of the Inspecting Assistant Commissioner". It is not disputed in the present case that the Respondent has filed complaint petitions on the authority of the Inspecting Assistant Commissioner. There is no statutory requirement that the complaint petition itself must be filed by the Inspecting Assistant Commissioner. The clause "at his instance" in Section 53 of the 1922 Act only means "on his authority" and it is therefore sufficient compliance of the statutory requirement if the complaint petition is filed by the Respondent on being authorised by the Inspecting Assistant Commissioner. 46. In the case of Collector of Customs v. Vasantraj Bhagwanji Bhatia 1988 (3) SCC 467, the question that arose for considerat....
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....vent the infliction of any punishment to which the person affected thereby is liable under any other law. The offences with which the Petitioners are now charged include an offence Under Section 120B, Indian Penal Code. Criminal conspiracy is an offence created and made punishable by the Indian Penal Code. It is not an offence under the Sea Customs Act. The offence of a conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients. They are, therefore quite separate offences. This is also the view expressed by the United States Supreme Court in United States v. Rabinowich (1915) 238 U.S. 78. The offence of criminal conspiracy was not the subject matter of the proceedings before the Collector of Customs and therefore it cannot be said that the Petitioners have already been prosecuted and punished for the "same offence". It is true that the Collector of Customs has used the words "punishment" and "conspiracy", but th....
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.... ultimately came to this Court at the instance of State of Bihar. Holding that Section 210 was not attracted, Their Lordships held: 24. We are unable to accept the contention of Shri R.F. Nariman that the specific allegation in the present case concerns the specific act of killing of an elephant, and that such an offence, at all events, falls within the overlapping areas between of Section 429 Indian Penal Code on the one hand and Section 9(1) read with Section 50(1) of the Act on the other and therefore constitutes the same offence. Apart from the fact that this argument does not serve to support the order of the High Court in the present case, this argument is, even on its theoretical possibilities, more attractive than sound. The expression "any act or omission which constitutes any offence under this Act" in Section 56 of the Act, merely imports the idea that the same act or omission might constitute an offence under another law and could be tried under such other law or laws also. xxx 26. Broadly speaking, a protection against a second or multiple punishment for the same offence, technical complexities aside, includes a protection against re-prosecution after acquittal, ....
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....f conspiracy to commit it are different offences. This Court said: The offence of conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients. They are, therefore, quite separate offences. 50. It is well known principle that the rule against double jeopardy is based on a maxim nemo debet bis vexari pro una et eadem causa, which means no man shall be put in jeopardy twice for one and the same offence. Article 20 of the Constitution provides that no person shall be prosecuted or punished for the offence more than once. However, it is also settled that a subsequent trial or a prosecution and punishment has no bar if the ingredients of the two offences are distinct. 51. In the case of State of Rajasthan v. Hat Singh (2003) 2 SCC 152, a person was prosecuted for violation of prohibitory order issued by the Collector Under Sections 5 and 6 of the Rajasthan Sati (Prevention) Ordinance, 1987. Against the said Ordinan....
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....ntioned in this section. However, Section 50 of the Act provides that no prosecution shall be instituted against any person for any offence against the Act except at the instance of the Government or an Electrical Inspector, or of a person aggrieved by the same. This Court allowing the appeal held as under: We may now refer to certain general considerations also leading to the view which we have taken. First, we find that the heading which governs Sections 39 to 50 of the Act is "Criminal Offences and Procedure". Obviously, therefore, the legislature thought that Section 39 created an offence. We have also said that Sections 48 and 49 indicate that in the legislature's contemplation Section 39 provided for a punishment. That section must, therefore, also have been intended to create an offence to which the punishment was to attach. The word 'offence' is not defined in the Act. Since for the reasons earlier mentioned, in the legislature's view Section 39 created an offence, it has to be held that that was one of the offences to which Section 50 was intended to apply. Lastly, it seems to us that the object of Section 50 is to prevent prosecution for offences against....
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....forged seals and thereby impersonated himself as Chartered Accountant. He was accordingly prosecuted and charge was framed against him Under Sections 419, 468, 471 and 472, Indian Penal Code. The Respondent challenged the order by filing revision Under Section 397, Code of Criminal Procedure. The Additional Sessions Judge set aside the order of the Magistrate and remanded the case to the trial court with a direction to decide whether there are sufficient grounds for framing charges Under Sections 419, 468, 471 and 473, Indian Penal Code read with Sections 24 and 26 of the C.A. Act. After remand, the trial court passed an order holding that there was no basis for framing any charge against Respondent under the Indian Penal Code. The Magistrate further held that cognizance of offences Under Sections 24 and 26 of the C.A. Act cannot be taken because no complaint had been filed by or under the order of the Council before the Magistrate. The revision filed against the orders of the Magistrate was dismissed. The High Court referring Sections 2, 4, 5 and Section 195(1), Code of Criminal Procedure held that in the absence of a complaint the Magistrate was not competent to frame charges aga....
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....t natural resources are the assets of the nation and its citizens. It is the obligation of all concerned, including the Central and the State Governments, to conserve and not waste such valuable resources. Article 48A of the Constitution requires that the State shall endeavour to protect and improve the environment and safeguard the forests and wild life of the country. Similarly, Article 51A enjoins a duty upon every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for all the living creatures. In view of the Constitutional provisions, the Doctrine of Public Trust has become the law of the land. The said doctrine rests on the principle that certain resources like air, sea, waters and forests are of such great importance to the people as a whole that it would be highly unjustifiable to make them a subject of private ownership. 56. Reading the provisions of the Act minutely and carefully, prima facie we are of the view that there is no complete and absolute bar in prosecuting persons under the Indian Penal Code where the offences committed by persons are penal and cognizable offence. 57. Sub-section (1A) ....
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....m can be overlooked provided there is substantial compliance with the rules read as whole and provided no prejudice ensues; and when the legislature does not itself state which Judges must determine the matter and exercising a nice discrimination, sort out one class from the other along broad based, commonsense lines. 63. The question is whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other. 64. In Maxell on the Interpretation of Statutes 10th Edn. at page 381, it is stated thus: On the other hand, where the prescriptions of a statute relate to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the legislature, such prescript....
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.... Section 4 and other sections of the Act, the officer empowered and authorized under the Act shall exercise all the powers including making a complaint before the jurisdictional magistrate. It is also not in dispute that the Magistrate shall in such cases take cognizance on the basis of the complaint filed before it by a duly authorized officer. In case of breach and violation of Section 4 and other provisions of the Act, the police officer cannot insist Magistrate for taking cognizance under the Act on the basis of the record submitted by the police alleging contravention of the said Act. In other words, the prohibition contained in Section 22 of the Act against prosecution of a person except on a complaint made by the officer is attracted only when such person sought to be prosecuted for contravention of Section 4 of the Act and not for any act or omission which constitute an offence under Indian Penal Code. 69. However, there may be situation where a person without any lease or licence or any authority enters into river and extracts sands, gravels and other minerals and remove or transport those minerals in a clandestine manner with an intent to remove dishonestly those mineral....